Six Television Lawyers Advise Us on the Mueller Probe

From Alan Dershowitz to now-discredited Michael Avenatti, so many contrasting legal opinions have been put forth in the news regarding what will result from Robert Mueller’s probe—and whether whatever the special counsel finds in his probe of President Donald Trump will even lead to a constitutionally admissible indictment. With the investigation making a number of major leaps in the past weeks, from Michael Cohen’s guilty plea to revelations of Paul Manafort visiting Julian Assange at the Ecuadorian embassy, it seems only logical to call up the numbers at the bottom of our favorite law firm ads to poll an all-star panel of ambulance-chasing, asbestos-busting experts (who know a ton more than you would think about the Constitution).

———

Stephen E. Barnes
Cellino & Barnes, Buffalo, NY“Don’t wait, call 8!”

“In 1978, in the wake of Watergate, Congress passed the Independent Counsel Act, which established a truly independent counsel to investigate various allegations of wrongdoing in government—like Ken Starr, who investigated Monica Lewinsky. They were truly independent and acted almost as a fourth branch of government that is not accountable to the executive branch. But the principal difference between Mueller’s investigation versus an independent counsel is that Mueller was appointed by Rod Rosenstein and must work under the auspices of a principal officer who has been appointed by the president and confirmed by the Senate. This was challenged in the last months by Paul Manafort’s attorneys in the District of Columbia. The court rejected any claim of unconstitutionality based on the fact that Mueller does not act independently but rather is under the control of Rosenstein. I don’t think that the Supreme Court would find Mueller’s appointment to be unconstitutional, but whether a president can be subject to a criminal indictment is an entirely separate issue. It remains an open question as to whether the articles of impeachment in Article 1 of the Constitution are the sole way to a remove a president.”

“I’m not convinced that the special counsel is a constitutional position. You know, following Watergate they passed the Independent Counsel Act, which was to prevent a future case in which an attorney general was working in concert with the president. But with the Independent Counsel Act, Congress had the foresight to say that this cannot go on forever, so it had a sunset clause in it—so that [provision] expired in June 1999. There’s a reason they didn’t renew it. In fact, there was a case called Morrison v. Olson where you’ll recall that the Supreme Court actually took on whether the Department of Justice could create a special prosecutor outside of the Independent Counsel Act. And they came up with several factors that you look to in determining whether the position exceeds constitutional authority. So if you’re asking me if Mueller’s position is constitutional, I would submit under Morrison v. Olson that it is not.”

“I believe that it is constitutional to indict a sitting president, as the Constitution does not explicitly grant immunity. However, it is likely that by the time this issue reaches the Supreme Court, the court’s makeup will be one in which the majority of justices will lean toward a strict interpretation of the Constitution. In cases decided involving both Presidents [Richard] Nixon and [Bill] Clinton, precedent does exist that holds that presidents do not have special immunity. Since the Mueller investigation has not yet concluded, and all the evidence with regard to matters of collusion or violations to the emoluments clause of the Constitution have yet to be uncovered, it is premature to opine on which of these would have significant ground to indict the president.”

“I’m an African-American who is a registered Republican, but because of how the election was stolen, I took a six-month period of not listening to any media. As soon as I dipped back into the media flow, I was able to gain perspective on what was going on. We live in a digital new wave—it’s a new form of despotism. Republican ultra-conservatives often refer to the Federalist Papers, but if you look really closely at Federalist Paper No. 1, it clearly lays out that no one is above the law. If we put the president above the law, then the president is not equal. And if we are a true republic governed by the people—and that is how our Constitution is structured—the president cannot have this kind of immunity.”

———

Barry GlazerThe Law Office of Barry Glazer, Baltimore, MD“Making it rain for the urinated upon.”

“When I was in law school—and I don’t know if things have changed much—the idea was that the president has so much on his plate that indicting him and dealing with a criminal charge while he’s dealing with major problems would be too much for a sitting president. He also handles the Justice Department, so there are some technical issues that would make indicting him very difficult as a practical matter. I think the question over what will happen to Trump is a political question more than a constitutional question. The Republicans in Congress could impeach him if they wanted to, but as a practical matter, they’re probably afraid to do that. If the Republicans win again, it’s likely that nothing is going to happen to him.”

———

Pete Reid
Pete Reid Law, Austin, TX“I’m the one for you.”

“I think the investigation into whether the election was compromised is a completely valid thing to do. But to my understanding, there haven’t been many leads from this investigation. I’m not even sure how the report itself will actually be issued—if it’s going to be a public report, if it will go to a committee, or if Rosenstein will decide what happens to it. I don’t think that Mueller is going to walk out one day and wave the report in his hand and be like, ‘Here it is, folks!’ It’s just going to go in a folder somewhere and someone is going to decide if we get to see the whole thing or not. I’m not sure. No one has even heard from this Mueller guy in a year and a half! He’s just completely got his head down working, and nothing has leaked out of this investigation. Who knows? Maybe the report will come out and it just says, ‘Nope.’ That’s it. ‘Nope.’”